Is Banning Abortion an Accurate Question?

No state in the United States has “banned” all abortions. Every state has laws permitting legal abortions to save the physical life of the mother. The notion of a total ban on abortion in any and every case is a political talking point but fails to describe accurately the reality of the policy debate going on in America.

The most restrictive abortion laws in the states (ca. 2024) contain a prohibition of abortion at the sixth week of pregnancy. As previously cited, such a ban, would still permit 40% of all abortions and add the provision of the protection of the physical life of the mother. This is the actual baseline of reality in the current legal and political debate. Even in states that “ban” abortion, the law permits roughly 40% of all abortions and state and federal law secure emergency care.

The next most discussed “ban” on abortion in the states or at the federal level would prohibit abortion after 15 weeks and include exceptions for the physical life and health of the mother as well as rape, incest and fetal anomalies. This form of a legislative ban would permit approximately 96% of all abortions restricting only late term abortions of viable children.

In 2023 the voters in Ohio passed a constitutional amendment which the media portrayed as “enshrining the right to abortion” in the Ohio Constitution. To date it is among the most liberal abortion laws passed in the United States. This amendment creates a legal environment that will result in abortions being available throughout all nine months of pregnancy. The definition of viability and life and health of the mother are left solely in the hands of those attending the abortion procedure without means of legal review. Under this provision abortion is now available 100% of the time for those who choose it.

In 2024 the Legislature of North Carolina passed a law restricting abortion after 12 weeks. Describing this legislation The Wall Street Journal stated: “Republicans in the legislature there banned nearly all abortions after 12 weeks of pregnancy, with limited exceptions for rape, incest and serious fetal anomalies.”

A more accurate reading of the North Carolina law tells a much different story. By permitting abortion for any reason through 12 weeks, the North Carolina law permits abortions in approximately 93% of all cases where women choose abortion in America. By permitting abortions in cases of rape, incest and fetal anomalies, the law permits abortion in almost all of the “hard cases.” This law also permits the termination of a pregnancy that presents a physical danger to the health of the mother through all nine months of pregnancy.

In the factual reality of how abortions are conducted in America, the North Carolina law only substantively restricts the abortion of unborn children near or at the point of viability. This law is nearly as permissive as the abortion provisions enabled by the U.S. Supreme Court in the era of Roe v. Wade.

What is the difference between the “enshrinement of abortion” language in Ohio and the North Carolina legislation that “bans all abortions” past twelve weeks? Statistically the range is somewhere around four to five percent. Ohio’s universal abortion law differs from the North Carolina’s abortion “ban” by approximately four to five percent of cases.

This analysis illustrates the seldom discussed fact that the actual laws being passed in the multiple states are far more permissive than restrictive. To date there is no state that has passed a total ban on abortion.

Do Gestational Age Bans Effectively Protect Viable Children from Abortion?

A “gestational age ban” is another term for the “trimester system” that was a part of the U.S. Supreme Court’s method for defining pregnancy during the Roe v. Wade era.

Most state laws that now have a “gestational age ban” on abortions also contain language that permits exceptions for the “hard cases” such as fetal anomalies and the physical life and health of the mother. During the Roe era these kinds of language exceptions were manipulated by some abortion providers to justify the termination of the life of a fully viable unborn child. In one case, and this is the single most extreme case to date, the disregard for the law resulted in horrific consequences. 

According to the Kaiser Foundation, approximately 1% of abortions in America occur during “late term.” This raises the question of viable children being terminated which remains one of the most troubling questions in abortion law. The 1% number is approximated to be between 10,000 and 12,000 late term pregnancies terminated annually in America. If these numbers are reliable as reported, that means between 10,000 and 12,000 viable children in America are aborted every year.

Since 2022 and the United States Supreme Court decision in Dobbs, there are now nine states (as of 2024) and Washington D.C. that have no gestational age limits on abortion procedures. There is no legal protection language for a viable unborn child in Oregon, New Mexico, Colorado, Minnesota, Michigan, Vermont, New Jersey, Maryland, Alaska and the District of Columbia. Other states, like Ohio, leave the definition of viability in the hands of abortion providers and permit the question of life or health of the mother to override viability of the child without any form of legal review.

It is a long-standing consensus in American law that protecting the life and health of the pregnant mother is a practice wholly consistent with the mother’s right to life and to the preservation of her life. That legal trend line did not change during the five-decades of Roe v. Wade, nor was it abandoned in the Dobbs decision in 2022, nor has there been any erosion of this right in the attending legal changes in abortion laws in the states.

Are Americans in the Process of "Banning" Abortion?

A thorough review of the laws in all 50 states reveals that a total ban on all abortions is not happening in law anywhere in the 50 states. An accurate analysis of the evidence would conclude that the return of the question of abortion to “the people and their representatives” (Dobbs decision) is in fact creating a sustained debate over how far the people in the states want to first permit abortion and then restrict the practice. The permissive side of the debate is clearly prevailing.

The Chemical Option

The technology of abortion has changed dramatically since the Roe decision. The internet was largely a government secret in 1973 when Roe was decided. Today abortion by prescription drugs secured online is the primary means of the majority of abortions. Those determined to obtain an abortion procedure have multiple options to access abortion pills. As such it will be extremely difficult for states to effectively administrate abortion laws and reporting.

In Summary...Abortions are on the Rise Post Dobbs

There is a great deal of rhetoric in the political marketplace about banning access to abortion post Dobbs. Abortion laws are changing in the states. Some states are restricting the process while others are expanding abortion access. The net result of these legal changes at the state level has not led to a decrease but rather an increase in the number of abortions in America since the Dobbs decision.

In the final years of Roe v. Wade, the number of reported abortions was on the decline in the United States. In 2020 the number of reported abortions was 930,160. After the Dobbs decision returned the issue to the states in 2022, the number of abortions in the U.S. rose in 2023 to 1,026,690 (Guttmacher Institute Data).

Kaiser Family Foundation: Abortion Policy Gestational Limits and Exceptions